On 17 November 2017, the Committee on the Rights of Child (CRC Committee) together with the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW Committee) published not one but two joint General Comments (JGCs) on the human rights of children in the context of international migration. This was a significant event because two treaty monitoring bodies have worked together on a topic of global importance and this was the first time both Committees adopted two General Comments on the same issue. The first JGC covers General Principles (General Comment No 3 CMW and General Comment No 22 CRC) [JGC-GP] and the second deals with States’ human rights obligations in countries of origin, transit, destination and return (General Comment No 4 CMW and General Comment No 23 CRC) [JGC-SO]. The JGCs reiterate the central tenet of children’s rights that children are rights holders and first and foremost children, regardless of their or their parents’ nationality or migration status. Although the JGCs do not focus on one type of migration, it is acknowledged that children in unsafe or irregular migration are more likely to suffer rights’ violations than children in voluntary migration situations (JGC-GP, para 8).

Background

The two Committees were compelled to draft the JGCs by the continuing phenomenon of children caught up in international migration and the extent and diversity of human rights violations they experience on their journeys. The publication of the JGCs followed months of consultation and discussion engaging experts, NGOs and stakeholders (including child rights and migration organizations). The JGCs are an important contribution to the dialogue on international migration, especially in light of the New York Declaration on Refugees and Migrants adopted by the UN’s General Assembly on 19th September 2016 and the ongoing negotiations on the Global Compact on Refugees, led by UNHCR and the Global Compact on Safe, Orderly and Regular Migration, led by the IOM. International migration, according to the Committees, places children in a situation of ‘double vulnerability’, as children and as children affected by migration (in whatever form that takes). Consequently, both Committees are committed to strengthening the protection of all children in the context of international migration (JGC-GP, para 4). Read the rest of this entry…

As all four contributions have identified, the central thesis of The Child in International Refugee Law is that the the Convention on the Rights of the Child (“CRC”) has a critical role to play, alongside the 1951 Refugee Convention, in enhancing the visibility and protection afforded to refugee children. Rather than simply asserting a need for greater interaction between the 1951 Refugee Convention and the CRC, the book attempts to map out the substantive contours of that relationship, and to anchor the relationship in the international rules of treaty interpretation.

In his contribution, Bjorge engages with the book’s treatment of the international rules of treaty interpretation, and in particular the argument developed in Chapter 1 that these rules should be drawn upon to promote greater engagement with the CRC as an interpretative aid to inform the interpretation of the 1951 Refugee Convention refugee definition. I agree with everything that he has said. Bjorge agrees, perhaps unsurprisingly (see, e.g. The Evolutionary Interpretation of Treaties (OUP, 2014)), that Articles 31-33 of the Vienna Convention on the Law of Treaties (“VCLT”) require a systemic approach to the interpretation of the 1951 Refugee Convention and that such an interpretative approach is, on the whole, likely to be beneficial for refugee children. However, he raises a sage warning that a systemic approach to treaty interpretation can, particularly in today’s unfortunate political climate, be used opportunistically by States to reduce rather than strengthen the protection afforded by the 1951 Refugee Convention. In these circumstances, says Bjorge, “it may well be that literalism or textual interpretation is rather better than its reputation”. Read the rest of this entry…

Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).

The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”

The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction. Read the rest of this entry…

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement. International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country). Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees. This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

What is seen and experienced often determines outcomes, in law as elsewhere. Background assumptions about the world (including legal texts) can distort the interpretation and application of norms. Partial perspectives render invisible what should be obvious or perhaps what only becomes obvious with revised theories and concepts. As Jason Pobjoy makes plain in his outstanding book, there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection. Refugee law makes no distinctions based on age; in theory a child who meets the Convention definition is every bit a refugee as an adult. This absence, of course, cuts both ways; it does not make explicit textual provision for the particular circumstances of children either. All refugees are not however treated equally, and in practice there are pervasive problems of visibility and incorrect assessment (Jason Pobjoy, The Child in International Refugee Law, (2017, Cambridge University Press) 5).

Pobjoy does a remarkable job in highlighting the deficiencies (for example, the evidence of the low number of references by domestic decision-makers to the UN Convention on the Rights of the Child) while also mapping out, with admirable precision, credible ways forward. Pobjoy thus unearths the lip-service often paid to the best interests of the child principle when compared with hard facts, but also charts a course for those globally and locally who genuinely want to take the rights of the child seriously within the international refugee protection framework.

I want to start by expressing my thanks to the editors of EJIL: Talk! for arranging this book discussion, and to Deborah Anker (with Nancy Kelly and John Willshire Carrera), Eirik Bjorge, Mary Crock, and Colin Harvey for agreeing to participate in the discussion. The participants are all leaders in their fields, and I am privileged that they have agreed to engage with The Child in International Refugee Law.

It is a sad reality that the horrors faced by refugee children – both in their country of origin, and in their attempt to secure international protection in a host State – continue to dominate our news feeds. In the past month alone, we have seen damning reports of Australia’s offshore processing regime, which has involved the transfer and detention of children, and, in some cases, the separation of children from their parents; reports that thousands of Syrian children in Jordan’s Za’atari camp are being deprived of an education; and reports that over 10,000 child migrants went missing in Europe last year. As Harvey recognises in his contribution, “there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection”. The need for change is heightened by the reality that childhood is a wasting asset. As Goodwin-Gill recently observed, “[c]hildhood, once lost, is never recovered”.

The premise underlying The Child in International Refugee Law is that international law has an important role to play in securing greater protection for refugee children. As Beth Simmons persuasively argues, international law provides a “rights based framework to supplement the protective framework that has a much longer history in many societies”. It is particularly important in the context of children, with the Convention on the Rights of the Child (“CRC”) providing a “lever to give … would-be advocates influence over policies likely to have an important impact on the well-being of those who are not able to organize and speak for themselves” (Simmons, Mobilizing for Human Rights (2009) 307).

The central thesis of the book is that the 1951 Refugee Convention is capable of responding in a sophisticated and principled way to refugee claims brought by children. More specifically, the CRC has an important role to play in both informing and supplementing the 1951 Refugee Convention.

The blog is happy to announce that over the next few days, we will host a discussion of Jason Pobjoy’s new book, The Child in International Refugee Law. Jason Pobjoy is a barrister at Blackstone Chambers, where he has a broad practice including public and human rights law, refugee and immigration law and public international law. He is a Research Associate at the Refugee Studies Centre, University of Oxford.

The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change. Read the rest of this entry…

Despite the numerous volume on child soldiers in legal literature over the last few decades, very little has been said on targeting child soldiers. It seems to be something international lawyers would rather not talk about. The fact that legal literature doesn’t say much about targeting child soldiers doesn’t mean that no such practice exists, or that soldiers haven’t discuss the matter. In 2002, the US Marine Corps Warfighting Laboratory organised a ‘Cultural Intelligence Seminar’ on the implication of child soldiering for US forces. One trigger for that discussion was the fact that the very first US soldier killed in Afghanistan reportedly was a Special Forces Sergeant shot by a 14-year-old boy. The year before, in Sierra Leone, a squad from the Royal Irish Regiment was taken prisoner by a group consisting mostly of armed children called the West Side Boys, as the British soldiers were hesitant to open fire. After they had been held hostage for two weeks, an assault was launched by an SAS unit supported by suppression fire from helicopters, leading to between 25 to 150 dead among the West Side Boys. Finally, during the civil war in Sri Lanka, a Government aircraft bombed what was deemed an LTTE training camp, killing a reported 61 minors, mostly girls. Although the LTTE was widely known to use child soldiers, and the specific facts were contested, the Sri Lanka Government was adamant that if a child took up arms, then he or she could be targeted and killed.

The phenomenon of child soldiers remains widespread, and their activities does include direct participation in hostilities. It is imperative that international humanitarian law provide guidance as to what opposing forces can do if they are confronted with that reality. In this piece, I suggest that there are elements in international humanitarian law that support adapting a child-specific approach to targeting. Under this approach, the fact that a potential target is a child should prima facie raise a doubt as to whether he or she is targetable. Although the doubt may be dissipated in light of available facts, overcoming the presumption of civilian status might require more than would be the case for an adult. In addition, even if a child is deemed targetable, the allowable means and methods must nevertheless reflect the protected status of children in international law. Read the rest of this entry…